Citation Nr: 9924823
Decision Date: 08/31/99 Archive Date: 09/08/99
DOCKET NO. 95-24 857 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for ischemic heart
disease
2. Entitlement to service connection for traumatic arthritis.
3. Entitlement to an increased rating for left lower
extremity peripheral neuropathy, currently evaluated as 10
percent disabling.
4. Entitlement to an increased rating for right lower
extremity peripheral neuropathy, currently evaluated as 10
percent disabling.
5. Entitlement to an increased rating for right upper
extremity peripheral neuropathy, currently evaluated as 20
percent disabling.
6. Entitlement to an increased rating for residuals of a cold
injury of the right foot, currently evaluated as 20
percent disabling.
7. Entitlement to an increased rating for residuals of a cold
injury of the left foot, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Alberto H. Zapata, Counsel
INTRODUCTION
The veteran served on active duty from August 1946 to
December 1947 and from October 1950 to October 1953.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a December 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.
As an initial matter, the Board notes that in an undated
letter the veteran stated that avitaminosis and malnutrition
caused or contributed to his hearing loss and eye disability.
In a letter received in June 1998, the veteran also addressed
hearing loss and eye disability. The veteran submitted
copies of prisoner of war research articles along with his
June 1998 letter. He was previously denied service
connection for hearing loss and service connection is
currently in effect for an eye condition deemed noncompenably
disabling. Thus, the Board interprets the veteran's
submissions as a petition for an increased rating for eye
disease and a request to reopen his claim for service
connection for hearing loss. These matters are referred to
the RO for appropriate action.
FINDINGS OF FACT
1. The claim for entitlement to service connection for
ischemic heart disease is not plausible.
2. The veteran was a prisoner of the North Korean government
from March 24, 1951, to August 12, 1953.
3. The veteran currently manifests traumatic arthritis of the
knees, feet, hands, right shoulder, and cervical,
thoracic, and lumbar spine.
4. The veteran's left lower extremity peripheral neuropathy
is currently manifested by diminished tactile
discrimination and position sense of the foot and toes,
reflexes of 3+, normal motion, no tenderness, and normal
nerve conduction and electromyographic studies, productive
of no more than mild impairment.
5. The veteran's right lower extremity peripheral neuropathy
is currently manifested by diminished tactile
discrimination and position sense of the foot and toes,
reflexes of 3+, normal motion, no tenderness, and normal
nerve conduction and electromyographic studies, productive
of no more than mild impairment.
6. The veteran's right upper extremity peripheral neuropathy
is currently manifested by complaints of tingling and
numbness of the arm and hand, decreased sensation of the
hand and fingers, and 2+ reflexes, productive of no more
than mild impairment.
7. The veteran's residuals of a cold injury of the right foot
are currently manifested by minimal degenerative joint
disease of the right first metatarsophalangeal joints,
right toe pain, excellent dorsal pedis and tibial artery
flow, a normal gait, and cold sensitivity, productive of
no more than mild impairment.
8. The veteran's residuals of cold injury of the left foot
are currently manifested by excellent dorsal pedis and
tibial artery flow, a normal gait, and cold sensitivity,
productive of no more than mild impairment.
CONCLUSIONS OF LAW
1. The claim for service connection for ischemic heart
disease is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. Traumatic arthritis of the knees, feet, hands, right
shoulder, and cervical, thoracic, and lumbar spine were
incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110,
1112, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998).
3. The criteria for an evaluation in excess of 10 percent for
right lower extremity peripheral neuropathy have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.124a, Diagnostic Codes 8599-8520 (1998).
4. The criteria for an evaluation in excess of 10 percent for
left lower extremity peripheral neuropathy have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.124a, Diagnostic Codes 8599-8520 (1998).
5. The criteria for an evaluation in excess of 20 percent for
right upper extremity peripheral neuropathy have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.124a, Diagnostic Codes 8599-8513 (1998).
6. The criteria for an evaluation in excess of 20 percent for
residuals of cold injury of the right foot have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.104, Diagnostic Code 7122 (1997, 1998).
7. The criteria for an evaluation in excess of 20 percent for
residuals of cold injury of the left foot have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.104, Diagnostic Code 7122 (1997, 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service connection claims
Before evaluating the merits of the veteran's claim for
service connection the initial question to be answered is
whether he has presented sufficient evidence to form a well-
grounded claim. In order to be well grounded, the claim must
be meritorious on its own or capable of substantiation. If
the evidence presented by the veteran fails to meet this
level of sufficiency, no further legal analysis need be made
as to the merits of his claim. 38 U.S.C.A. § 5107(a); Murphy
v. Derwinski, 1 Vet. App. 78, 81 (1990). In order for a
claim to be well grounded, there must be competent evidence
of current disability (a medical diagnosis), incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and a nexus between the inservice injury or
disease and the current disability (medical evidence). Epps
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997),
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d
604 (Fed. Cir. 1996) (table). Where the determinative issue
involves medical etiology, competent medical evidence that
the claim is plausible or possible is required in order for
the claim to be well grounded. This burden may not be met
merely by presenting lay testimony, because lay persons are
not competent to offer medical opinions. LeShore v. Brown, 8
Vet. App. 406, 408 (1995).
A. Ischemic heart disease
The veteran contends that he currently suffers from ischemic
heart disease which is etiologically related to his
experience as a prisoner of war of the North Korean
government from March 1951 to August 1953.
As a heroic ex-prisoner of war, a special adjudication
provision favors the veteran in his claim for service
connection for ischemic heart disease. Section 1112 of title
38 of the U.S. Code provides that a veteran who was a
prisoner of war for at least thirty days will be service
connected for a variety of diseases including "beriberi
(including beriberi heart disease)[,]" which become manifest
to a degree of 10% or more after active service, even though
there is no record of such disease during service. 38 U.S.C.
§ 1112(b); see also 38 C.F.R. § 3.309(c) (1998). Further,
the VA has specified that beriberi heart disease includes
ischemic heart disease in a former prisoner of war who had
experienced localized edema during captivity. 38 C.F.R. §
3.309(c) (note).
Thus, when a veteran satisfies the criteria set forth in
section 1112, the second (evidence of incurrence or
aggravation in service) and third (causal nexus) requirements
of Caluza are satisfied by the statutory presumption.
However, the claimant still bears the burden of presenting
sufficient evidence of a current disability. See Brock v.
Brown, 10 Vet. App. 155, 160 (1997); see also Gilpin v. West,
155 F.3d 1353 (Fed. Cir. 1998).
A review of the veteran's service medical and administrative
records confirms that he was a prisoner of war from March 24,
1951 to August 12, 1953. There is no evidence in the service
medical records of localized edema during captivity. A March
1954 VA examination report does state that the veteran had a
"touch of beriberi" while a prisoner.
However, because the Board is not able to identify evidence
in the record demonstrating current ischemic heart disease,
the veteran's claim must be denied as not well grounded.
Multiple VA compensation and pension examinations preformed
in recent years have failed to result in findings of ischemic
heart disease. The only cardiovascular diagnoses found by VA
were diagnoses of hypertension in November 1994 and chronic
atrial fibrillation with probably early secondary left
ventricle dysfunction in July 1997. The July 1997
examination specifically found no history of myocardial
infarction or angina.
Without a showing of current ischemic heart disease, the
veteran has failed to satisfy the above-cited first
requirement of a well-grounded claim enunciated in Caluza,
and, therefore, the predicate necessary for a grant of
presumptive service connection have not been fulfilled. Id.
The Board has considered and denied the claim for service
connection for ischemic heart disease as not well grounded,
whereas the RO denied the claim on the merits. However, the
veteran has not been prejudiced by the Board's decision
because in assuming that the claim was well grounded, the RO
accorded the veteran greater consideration than the claim in
fact warranted under the circumstances. Bernard v. Brown, 4
Vet.App. 384, 392-94 (1993). To remand this case to the RO
for consideration of the issue of whether veteran's claim is
well grounded would be pointless and, in light of the law
cited above, would not result in a determination favorable to
the veteran. VAOGCPREC 16-92.
B. Traumatic arthritis
In a February 1981 decision, the RO denied the veteran's
claim for service connection for degenerative arthritis. The
current appeal concerns a claim for service connection for
traumatic arthritis and is therefore a new claim.
Section 1112 of title 38 of the U.S. Code also provides that
a veteran who was a prisoner of war for at least thirty days
will be service connected for a variety of diseases including
post-traumatic osteoarthritis which becomes manifest to a
degree of 10% or more after active service, even though there
is no record of such disease during service. 38 U.S.C. §
1112(b); see also 38 C.F.R. § 3.309(c) (1998).
As mentioned, service evidence shows that the veteran
incurred a prolonged captivity in North Korea during the
Korean War. No inservice records show treatment for
beatings, edema, or arthritis.
Soon after separation from service the veteran was examined
by VA in March 1954. At that time, he complained of painful
feet, left arm pain, left wrist pain, left hand pain, and a
"touch of arthritis." The examination resulted in no
significant orthopedic findings.
Very mild degenerative arthritic changes of the cervical and
thoracic spine were first found through a December 1980 VA x-
ray accomplished as part of a compensation and pension
examination. Also, in the examination report dated in
January 1981 the VA examiner diagnosed degenerative arthritis
of the lumbar and cervical spine, right ankle and foot, and
the left shoulder.
July 1987 VA x-rays revealed a possible very early
degenerative process of the right glenoid; the examiner
suggested that a correlation between history and x-ray
findings should be made. X-rays of the wrists resulted in
differential diagnoses of gouty arthritis, osteoarthritis,
and intra-articular calcification. Periarticular
calcifications of the distal interphalangeal joints of the
second and third fingers of both hands were noted; this
finding was felt to be possibly due to osteoarthritis. X-
rays of the knees showed very minimal spurring over the
medial aspect of the left knee joints probably due to early
degenerative process, and early degenerative changes of the
right acromioclavicular joint. According to the August 1987
VA compensation and pension examination report, the examiner
diagnosed very early degenerative arthritis of the left knee,
minimal degenerative arthritis of the right shoulder,
degenerative arthritis of the right acromioclavicular joint,
minimal degenerative arthritis of the hands, and chip
fracture of the right wrist.
Significantly, in a letter dated in July 1993, a private
physician stated that to the best of his medical knowledge
there was no "sure way" to distinguish between traumatic
and degenerative arthritis unless there was overwhelming
historic evidence favoring one of the two diagnoses. The
physician opined that people exposed to repeated trauma will
develop arthritis that is indistinguishable from degenerative
joint disease caused by aging.
In a statement dated in August 1994, the veteran reported
that during his captivity he was kicked with hard-toed boots
and rifle butts across his neck, back, shoulder, knees, legs,
and ankles. In addition, he reported long forced marching
and arduous forced heavy labor.
In November 1994, x-rays revealed degenerative arthritis in
the anatomical regions found in the July 1987 films, as well
as additional findings of degenerative arthritis in the
lumbar spine, cervical spine, feet, and left knee. Final
diagnoses from the November 1994 VA examination of the joints
were osteoarthritis of the knees, and feet.
Although the veteran's service medical records are negative
for any complaint, treatment or diagnosis of traumatic
arthritis, determinations of service connection, generally,
are to be evaluated in light of all evidence of record,
including competent lay evidence, and not based solely upon
an evaluation of medical or official military records.
Horowitz v. Brown, 5 Vet.App. 217, 221 (1993). Further, lay
witnesses are competent to provide testimony that may be
sufficient to substantiate a claim of service connection when
their testimony is limited to that which they actually have
observed and to that which is within their realm of
knowledge. Layno v. Brown, 6 Vet.App. 465, 469 (1994); cf.
Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (a lay
person is not competent to testify to matters requiring
medical knowledge).
The Board finds the veteran's statements concerning the
beatings and maltreatment he received while a captive in
North Korea highly credible and consistent with the
conditions of his captivity. Moreover, the Board finds the
veteran's complaints in March 1954 that he suffered arthritic
type pain of the feet, hands, and wrists, highly probative of
inservice trauma. Further, the statement of the above-cited
private physician declared that traumatic and degenerative
arthritis are not clinically differentiable, weights in favor
of the veteran's claim. There is no competent medical
evidence of record in opposition to the private physician's
statements. Thus, considering this statement, it is equally
likely that post-service showings of arthritic changes of the
knees, feet, right shoulder hands, and cervical, thoracic,
and lumbar spine, are attributable to traumatic arthritis as
degenerative. Therefore, the Board finds that the evidence
is in equipoise with respect to a showing of a current
diagnosis of traumatic arthritis. Thus, with resolution of
reasonable doubt in the veteran's favor, the evidence
supports the claim for entitlement to service connection for
the traumatic arthritis on a presumptive basis. 38 U.S.C.A.
§§ 1101, 1112.
II. Compensation levels
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
disabilities. The Board has found nothing in the historical
record which would lead to the conclusion that the current
evidence of record is not adequate for rating purposes. The
Board is of the opinion that this case presents no
evidentiary considerations, except as noted below, which
would warrant an exposition of the remote clinical histories
and findings pertaining to the disabilities at issue.
Disability evaluations are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule), found in 38 C.F.R. Part 4 (1998). The
Board attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations
require that when there is a question as to which of two
evaluations is to be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
A. Peripheral neuropathy
The claims concerning the compensation level assigned
service-connected peripheral neuropathy have been placed in
appellate status by a notice of disagreement taking exception
to the initial rating award. Accordingly, the veteran's
claims with respect to peripheral neuropathy must be deemed
well grounded within the meaning of 38 U.S.C.A. § 5107(a),
and VA has a duty to assist the veteran in the development of
the facts pertinent to his claims. See Fenderson v. West, 12
Vet. App. 119, 127 (1999) (applying duty to assist under 38
U.S.C.A. § 5107(a) to initial rating claims); cf. Caffrey v.
Brown, 6 Vet. App. 377, 381 (1994) (increased rating claims).
When a veteran submits a well-grounded claim, VA must attempt
to obtain all such medical evidence as is necessary to
evaluate the severity of the veteran's disabilities from the
effective date of service connection to the present.
Fenderson, at 127, citing Goss v. Brown, 9 Vet. App. 109, 114
(1996); Floyd v. Brown, 9 Vet. App. 88, 98 (1996); Green v.
Derwinski, 1 Vet. App. 121, 124 (1991). See also 38 C.F.R.
§ 4.2 (ratings to be assigned "in the light of the whole
recorded history"). With respect to the peripheral
neuropathy claims resolved in this decision, this obligation
was satisfied, to the extent possible, by the examination
reports described below, and the Board is satisfied that all
relevant facts have been properly and sufficiently developed.
Service connection for peripheral neuropathy was granted in
the December 1994 rating decision on appeal. Service
connection was established for peripheral neuropathy of the
right upper extremity, deemed 20 percent disabling, and for
the right lower extremity, deemed noncompensably disabling.
Both were made effective from September 2, 1994. In an
October 1997 rating decision the RO recognized clear and
unmistakable error in its December 1994 rating decision.
Specifically, the RO found that the law permitting service
connection for peripheral neuropathy for former prisoners of
war was made effective from May 20, 1988. Thus, because the
veteran had filed his claim on September 2, 1994, the
effective date for service connection for his peripheral
neuropathy was moved back to September 2, 1993. In addition,
the RO assigned 10 percent evaluations for both lower
extremities, also effective from September 2, 1993.
As noted above, the November 1994 VA peripheral neuropathy
examination revealed no focal motor weakness of the lower
extremities and lack of ankle reflexes and a diagnosis of
peripheral neuropathy involving the toes and with no abnormal
reflexes found.
VA general medical examination conducted in July 1997
resulted in findings of no motor deficits and diminished
tactile discrimination and position sense of the feet and
toes; reflexes were found to be 3+. The examiner offered a
general diagnosis of peripheral neuropathy.
The July 1998 VA examination included nerve conduction and
electromyographic studies of both lower limbs which were
deemed normal. Further, the examiner found normal sensation
and no tenderness with regard to the lower legs.
A diagnostic code specific for peripheral neuropathy is not
contained in the Rating Schedule. When an unlisted condition
is encountered it will be permissible to rate under a closely
related disease in which not only the functions affected, but
the anatomical localization and symptomatology are closely
analogous. 38 C.F.R. § 4.20 (1998). The RO has rated the
veteran's peripheral neuropathy as analogous to paralysis of
all radicular groups and the sciatic nerve.
Under diagnostic code 8520, the rating for paralysis of the
sciatic nerve hinges upon whether such paralysis is complete
or incomplete. For incomplete paralysis, the level of
disability is rated based upon determinations of mild,
moderate, moderately severe, or severe impairment. A 20
percent evaluation is warranted when it is determined that
moderate impairment is shown; a 10 percent evaluation is
warranted for mild impairment. 38 C.F.R. § 4.124a,
Diagnostic Code 8520.
Under diagnostic code 8513, the rating for paralysis of all
radicular groups also hinges upon whether such paralysis in
complete or incomplete. For incomplete paralysis, the level
of disability is rated based upon determinations of mild,
moderate, or severe impairment. The minimum compensable
rating is 20 percent for a showing of mild impairment; a 40
percent rating is warranted for moderate impairment of a
major extremity and 30 rating warranted for moderate
impairment of a minor extremity. 38 C.F.R. § 4.124a,
Diagnostic Code 8513.
After careful consideration of all the medical evidence of
record, the Board concludes that the veteran's peripheral
neuropathy impairment does not warrant a higher compensation
level than that already in effect. As mentioned, the most
specific clinical commentary concerning peripheral neuropathy
was found in the report from the November 1994 VA
examination. Since that time, the only other positive VA
examination findings were those found through the July 1997
VA examination. In sum, the findings do not point to more
than mild impairment. In support of this conclusion, the
Board notes that electromyographic and nerve conduction
studies of the right upper and lower extremities were found
to be normal in 1994. Further, neurological evaluation in
July 1997 resulted in showings of diminished sensory function
of the feet and toes only. No motor function deficits or
abnormal reflexes were found. Moreover, the most recent
evaluation of the veteran's lower extremities in July 1998
resulted in findings of normal sensation, lack of tenderness,
and no neurological impairment on diagnostic testing.
Accordingly, ratings of mild impairment for the various
anatomical parts affected by peripheral neuropathy,
identified by the RO as analogous to diagnostic codes 8510
and 8513, are appropriate for the veteran's overall
functional incapacity attributable to his peripheral
neuropathy. 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8520.
B. Cold injury to the feet
As a preliminary matter, the Board finds that the veteran's
claim for an increased evaluation for residuals of cold
injury of the feet is plausible and capable of
substantiation, and thus well grounded within the meaning of
38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet.App.
629 (1992) (a claim of entitlement to an increased evaluation
of a service-connected disability generally is a well-
grounded claim). When a veteran submits a well-grounded
claim, VA must assist him in developing facts pertinent to
that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied
that all relevant evidence has been obtained regarding the
veteran's claim for an increased evaluation for residuals of
cold injury of the feet and that no further assistance to the
veteran with respect to this claim is required to comply with
38 U.S.C.A. § 5107(a).
The RO construed September 1994 submissions to include a
claim for an increased rating for the veteran's frozen feet
residuals. Since that time, pertinent evidence added to the
claims file includes a VA Medical Center treatment report
dated in October 1994. In that report, an examiner noted
complaints of pain of the right great toe which lasted for
about one minute. In addition, the examiner noted sharp pain
in the medial ridge and plantar syndrome. Tendonitis of the
right great toe with hallux valgus was diagnosed.
As a result, a peripheral nerves examination was scheduled
and conducted in November 1994. Review of the report from
that examination reveals findings of no focal motor weakness
of the lower extremities and lack of ankle reflexes. The
examiner diagnosed peripheral neuropathy involving the toes
and no abnormal reflexes. X-rays showed bilateral mild
hallux valgus, minimal to moderate bunion formation, and
minimal degenerative joint disease involving the first
metatarsophalangeal joint.
Also in November 1994, a VA examination of the joints was
conducted. According to the report from that examination,
the veteran complained of aching feet and ankles which became
cold at night, in addition to right toe pain. Physical
examination revealed a bunion and lateral deviation of the
large toe of the right foot. Compression of the skin in this
region revealed blanching with recovery in two seconds. The
dorsal pedis and posterior tibial arteries were noted to be
in excellent condition. The veteran was able to walk well on
his toes, heels, and with inverted and everted feet. The
examiner noted that the veteran had good arches and a normal
gait. The examiner diagnosed osteoarthritis of the feet with
minimal hallux valgus, more pronounced on the right, with a
bunion on the right.
The veteran was examined for cold injury residuals in July
1998. On that occasion he complained of aching and a burning
sensation affecting his feet, and he reported that he could
not stay on his feet for long periods of time. He also
complained of feeling cold in the winter. Physical
examination revealed a normal heel-toe gait and good posture;
the veteran was able to tiptoe. Both feet appeared normal in
plantigrade position without any evidence of deformity; the
skin was healthy with no evidence of edema; foot temperature
was normal and there was no evidence of atrophy. The skin of
the feet was moist and smooth and there was no evidence of
fungal infection. Ankle pulses were palpable on both sides
and tenderness was found over the first metatarsophalangeal
joint of both feet. There was mild swelling of the left leg.
Ankle movements were full and there were no complaints of
pain. No tenderness of the lower legs was found and they
manifested normal sensation. X-rays showed mild arthritic
changes of the right first metatarsophalangeal joint. An
electromyographic and nerve conduction studies of both lower
extremities were normal. Mild arthritis of the right first
metatarsophalangeal joint was diagnosed and no gross
residuals of cold injury.
During the pendency of this appeal, VA revised the criteria
for diagnosing and evaluating disabilities of the
cardiovascular system. 62 Fed. Reg. 65,207 (1997). These
regulatory changes became effective on January 12, 1998. The
new criteria for evaluating cardiovascular disabilities are
now codified at 38 C.F.R. § 4.104 (1998).
The veteran has been informed of the change in the regulatory
criteria. He is entitled to have his case adjudicated under
whichever disability criteria would be more favorable to him
in light of regulatory change while his case is on appeal to
the Board. Cohen v. Brown, 10 Vet. App. 128, 138-139
(1997); Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Thus, the Board must compare the old and new regulatory
criteria in the context of the facts of the veteran's case.
The Board notes, however, that in the context of an EAJA
claim, the Court of Appeals for Veterans Claims (Court)
recently held that under the effective date rule found at
38 U.S.C. A. § 5110(g), the Board could not apply the revised
mental disorder rating criteria to a claim for any date prior
to November 7, 1996. Rhodan v. West, 12 Vet. App. 55 (1998).
Therefore, impairment resulting from the veteran's service-
connected cold injury residuals prior to January 12, 1998,
must be evaluated using the older criteria, while impairment
subsequent to January 12, 1998, must be evaluated under the
criteria more beneficial to the veteran, given his particular
disability picture.
Under the rating criteria currently in effect, a 10 percent
rating is warranted for cold injury residuals if the
disability includes pain, numbness, cold sensitivity or
arthralgia; a 20 percent rating is warranted if the
disability includes arthralgia or other pain, numbness, or
cold sensitivity plus tissue loss, nail abnormalities, color
changes, locally impaired sensation, hyperhidrosis, or x-ray
abnormalities (osteoporosis, subarticular punched out
lesions, or osteoarthritis) of the affected parts; a 30
percent rating is warranted if the disability includes
arthralgia or other pain, numbness, or cold sensitivity plus
two or more of the following: tissue loss, nail
abnormalities, color changes, locally impaired sensation,
hyperhidrosis, or x-ray abnormalities (osteoporosis,
subarticular punched out lesions, or osteoarthritis). Note:
Each affected part is to be evaluated separately and
combined, if appropriate in accordance with 38 C.F.R. §§ 4.25
and 4.26. 38 C.F.R. § 4.104, Diagnostic Code 7122 (1998).
Under the old rating criteria, for mild symptoms (chilblains)
residuals of frozen feet warrant a 10 percent disability
evaluation. A 20 percent evaluation is warranted if the
residuals with respect to one foot are characterized by
persistent moderate swelling, tenderness, and redness; such
persistent symptoms warrant a 30 percent evaluation if both
feet are affected. A 30 percent evaluation is warranted with
loss of toes or parts, and persistent symptoms, for one foot,
and a 40 percent evaluation is in order if such symptoms are
manifested in both feet. See 38 C.F.R. § 4.104, Diagnostic
Code 7122 (1997).
Service connection for frozen feet was granted by a rating
decision dated in April 1954, and a noncompensable rating was
therein assigned. The noncompensable evaluation was made
effective from the day after the veteran's separation from
service. In a September 1998 rating decision, the RO
increased the veteran's rating for residuals of frozen feet
to 20 percent for each foot pursuant to the recent changes in
the rating criteria governing disabilities of the
cardiovascular system. The increase was made effective from
January 12, 1998, the effective date of the revised rating
criteria.
Thus, the initial question that must be answered is whether
the veteran's frozen feet residuals warranted a compensable
rating within the appeal period prior to January 12, 1998.
Review of the medical evidence outlined above fails to show
that the veteran's disability warranted a compensable rating
prior to January 12, 1998. Since filing his claim for
increase in September 1994 through January 12, 1998, the
veteran's chief complaints related to his feet were
generalized aching and pain isolated to his right first
metatarsophalangeal joint. Clinical evaluations revealed
sufficient arterial flow, with no showing of the erythema or
swelling indicative of mild symptoms (chilblains) under the
old criteria. Electromyographic and nerve conduction studies
of the feet were normal, and the chief pathological finding
was arthritic changes of the right first metatarsophalangeal
joint. Moreover, there were no complaints of pain with full
ankle movement.
With respect to the veteran's current rating, as mentioned,
20 percent ratings are currently in effect for cold injury
residuals for each foot. Under the new rating criteria, in
order for a 30 percent rating to be warranted manifestations
of the cold injury residuals must include at least two of the
following: tissue loss, nail abnormalities, color changes,
locally impaired sensation, hyperhidrosis, x-ray
abnormalities osteoporosis, subarticular punched out lesions,
or osteoarthritis). Although the veteran did complain of
generalized cold sensitivity at his latest examination, none
of the other manifestations required for the 30 percent
rating were found. Without a showing of the two or more of
the listed manifestations, the veteran's disability picture
more nearly approximates his currently assigned ratings.
In assessing the above service-connected disabilities, the
Board has considered the extent to which the veteran's
disabilities cause functional impairment, including
functional impairment due to pain. 38 C.F.R. §§ 4.10, 4.40
(1998).
The Board has given due consideration to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4, whether or not they were raised by the veteran, as
required by Schafrath. In particular, the Board notes that
the disabilities in question have not been shown to more
nearly approximate the criteria for the next highest
available rating. 38 C.F.R. § 4.7.
ORDER
Evidence of a well grounded claim for service connection for
ischemic heart disease not having been submitted, the appeal
with respect to this issue is denied.
Service connection for traumatic arthritis of the knees,
feet, hands, right shoulder, and cervical, thoracic, and
lumbar spine, is granted.
Entitlement to an evaluation in excess of 10 percent for left
lower extremity peripheral neuropathy is denied.
Entitlement to an evaluation in excess of 10 percent for
right lower extremity peripheral neuropathy is denied.
Entitlement to an evaluation in excess of 20 percent for
right upper extremity peripheral neuropathy is denied.
Entitlement to an evaluation in excess of 20 percent for
residuals of a cold injury of the right foot is denied.
Entitlement to an evaluation in excess of 20 percent for
residuals of a cold injury of the left foot is denied.
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals